FC: Replies to "When anyone can publish, who's a journalist now?"

[Declan McCullagh <declan () well com>]

Previous Politech message:
http://www.politechbot.com/p-02445.html

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Date: Thu, 6 Sep 2001 13:09:38 -0400
From: Vicki Richman <vicric () vicric com>
To: Declan McCullagh <declan () well com>
Subject: Trummel v. Mitchell: 1st Amendment Issue
Organization: National Writers Union, UAW Local 1981

Declan, this is not an electronic issue, but Trummel
v. Mitchell, in Washington State, goes to the heart of a
question raised on politech: Who is a "legitimate"
journalist?

See:

http://www.contracabal.org/806-00.html

Briefly, Paul Trummel, a retired journalist from Britain,
with impeccable credentials, discovered what he believed to
be fraud and abuse in the management of his moderate-income
retirement home. He published leaflets and distributed them
to his neighbors.

The management got an order of protection against him,
effectively banning him from his home and preventing him
from approaching his neighbors. He argued freedom of the
press, but the judge ruled that he was not a journalist, as
he was retired and not employed by any "legitimate"
publication.

Therefore, the judge held, he lacked protection of the First
Amendment and was guilty of harassment.

In trying to get the order rescinded, Trummel has a pro bono
attorney and an amicus brief by the ACLU. He'd like
political civil-libertarian support, as well as financial
contributions for his attorney.

Solidarity,
--
Vicki Richman
vicric () vicric com
http://vicric.com

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From: "Anuj Desai" <acdesai () facstaff wisc edu>
To: <declan () well com>
Subject: Re: When anyone can publish, who's a journalist now?
Date: Wed, 29 Aug 2001 16:44:07 -0500

Declan,

Your readers might be interested in knowing that many courts have been
forced to deal with the question, "Who is a journalist?" over the years in
circumstances similar to what appear to be Ms. Leggett's.  Several states
have laws, known as shield-laws, that specifically protect journalists from
testifying in certain circumstances, and those laws often contain
definitions of "journalist" or "reporter" or "media".  In addition, the
First
Amendment provides a separate protection.

In the statutory context, the courts are of course bound by the legislative
definitions of who is a journalist.  These definitions vary from state to
state, but in most states depend upon some sort of professional affiliation.

Under the First Amendment, however, courts have been much broader, focusing
primarily on whether the person claiming the journalist's privilege had an
intent to disseminate the information to the public **at the time s/he
gathered it**.  Bearing in mind the Supreme Court's admonition that "Freedom
of the press is a 'fundamental personal right' which is not confined to
newspapers and periodicals.  It necessarily embraces pamphlets and leaflets.
...  The press in its historic connotation comprehends every sort of
publication which affords a vehicle of information and opinion,'"  Branzburg
v. Hayes, 408 U.S. 665, 704 (1972) (quoting Lovell v. City of Griffin, 303
U.S. 444, 450, 452 (1938)), courts have been unwilling to restrict press
rights to the institutional press.  Although the Supreme Court has never
directly addressed the question, "Who is a journalist?" in the context of
the journalist's privilege (indeed, the fear that courts would have to deal
with it was part of the majority's rationale for *not* granting the
privilege in the seminal Branzburg case), many federal courts have addressed
it, with
varying results depending on the circumstances.  See, e.g., In re Madden,
151 F.3d 125 (3d Cir. 1998); Schoen v. Schoen, 5 F.3d 1289, 1293-94 (9th
Cir. 1993); Von Bulow v. Von Bulow, 811 F.2d 136 (2d Cir.), cert. denied,
481 U.S. 1015 (1987); Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir.
1977); Blum v. Schlegel, 150 F.R.D. 42 (W.D.N.Y. 1993); Apicella v. McNeil
Labs., Inc., 66 F.R.D. 78, 84-85 (E.D.N.Y. 1975).

This is not to say that answering the question is simple in any give
circumstance, but simply to note that courts have been doing it for a long
time.

One other point that should be clarified in light of this post is that, in
every jurisdiction, the journalist's privilege is a *qualified* privilege
and yields to the needs of evidence-gathering in many cases.  No one, not
even a New York Times reporter [I use the NYT rather than Wired because we
know that some would question your own status as a journalist :-) ], gets
the
privilege in every circumstance.  The person attempting to force a
journalist to testify in the face of the privilege simply has to show that
1) the information they seek is relevant to the lawsuit for which they are
seeking it; 2) their suit is not frivolous; and 3) they have exhausted all
other reasonable means of obtaining the information (or some other similar
variation of this three-part test).  So, even having a broad definition of
"journalist" does not completely open the door to an unfettered right to
refuse to testify.

-Anuj

Anuj C. Desai
University of Wisconsin Law School
975 Bascom Mall
Madison, WI 53706
acdesai () facstaff wisc edu

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Date: Wed, 29 Aug 2001 14:49:00 -0700
From: Michael Maynard <mmaynard () azipart com>
To: declan () well com
Subject: Re: FC: When anyone can publish, who's a journalist now?

In response to Mr. Geer, first of all, he does a cute debating trick
of confusing terms. The original question was "who is a writer?" which
he changed to "who is a journalist?. There is a big difference. Anyone
can write, but not everyone can be a journalist.

There are rules and ethics associated with being a journalist, such as
verifying facts, using direct quotes only when directly attributible from
the source, and requiring at least two sources when verifying information
provided from an unknown or questionable oringinal source.

These rules and ethics have certainly been diminshed in recent years
through the works of self-styled "journalists", like Matt Drudge. However,
true journalism, passed down to us from our precedessors, such as H.L. Mencken,
is a very honorable and necessary profession. Right now, the world needs more
true journalists and less journlistic poseurs who have tried to confuse
tabloid-level
sensationalism to be real journalism.

So, Mr. Geer, your press pass is definitely denied.

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From: "Matthew Pemble" <mpemble () isintegration com>
To: <declan () well com>, <geer () world std com>
Cc: <politech () politechbot com>
Subject: RE: When anyone can publish, who's a journalist now?
Date: Wed, 29 Aug 2001 16:50:04 +0100


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What about (fully recognised and published) part-time journalists?  I
have a monthly column in a trade magazine.  It takes up about 2% of my
working time.  What protection should that material have and,
considering that they are compiled using the same systems, how does
that affect the 98% of my work which is as a security consultant?

Actually, as I am a Brit, there is no protection at all but consider
the hypothetical case.

- - --

Matthew Pemble

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From: terry.s () juno com
To: declan () well com
Date: Wed, 29 Aug 2001 21:16:17 -0400
Subject: Re: FC: When anyone can publish, who's a journalist now?

Hi Declan!

On Wed, 29 Aug 2001 11:01:30 -0400 Declan McCullagh <declan () well com>
writes:

> Now the thought experiment is this:  If the Profession of Jornalists
> (PoJ) chooses to defend the proposition that anyone who wants to be
> one automatically is one, then whether I am today a journalist or not
is
> a role decision that presumably I get to make, both to adopt the role
> and to rescind the role, according to my whim.  As the role has and
> claims substantial privileges, what bargain would the PoJ offer to
society
> at large to justify, whether politically or morally or economically,
> the extension to the many what had heretofore been special privileges
> afforded to the PoJ few?  In other words, if the right claimed is to
> not tell law enforcement what one knows today in exchange for the
> promise to eventually tell the entire public that part of it that  can
> be woven into a readable narrative, then the terms of the bargain
> are at least clear.

This sounds very much like an issue of who is clergy, protected by
privilege of extending confidence and being exempt from compelled
testimony.  Unlike for physicians, and subject to many quirks lawyers,
there can be no legitimate form of professional licensing for clergy, and
likewise for journalists.  In some religions there is a hierarchical
structure of central authority which defines clergy and issues judicially
reviewable credentials, or not (just as for press).  In others, everyone
is considered clergy, with only a distinction of who also obtains
credentials from an IRS (of all agencies) sanctified supposed authority,
or who functions as such in a professional as opposed to other role.
More ethical states wrestle with legal ambiguity defining clergy, while
other states try to pretend no one is clergy unless individuals license
their religious rights with those problem states.

The suggestion that a church with lay deacons acting as clergy cannot
extend clerical legal status to other than professional employee clergy
has been litigated, with findings that law cannot legally make such
distinctions Constitutionally.  The issues of a religion where many
practitioners do not associate with an IRS approved corporate church,
while most practitioners are acting as clergy to self if not also others,
have not yet been resolved such that our legal system deals with current
reality of legal fact.

Journalistic privilege of confidence is very similar to that for clergy,
with one set of issues that differ.  Due to traditions of clerical
counseling, clergy in many states are exempt from medical licensing laws
regarding practice of Psychology.  In turn, law in some states subjects
clergy to compelled reporting of verified or suspected child and/or
elderly abuse, as it does for doctors, teachers, social workers, etc.
Clergy can also generally be sued for malpractice in such counseling if
offered to others.

The same issue exists with clergy as journalists of a supposed public
service embedded in the profession as the historic rationalization for
special legal status.  At the time the Bill of Rights was adopted, most
states either still were or had recently been theocracies, and retained
traits of such church control of state.  Some of those survive today
despite the 14th Amendment making that illegal as of 1868.  Splinter
religion clergy not associated with large corporate churches presumed to
somehow offer quasi-theocratic government public services may parallel
the direction the specialty press has gone.  Are the millions of minor
variants of thousands of documented religions now present in the USA akin
to the nature of press to now narrowcast to special interest groups,
rather than mostly be a key element of linking government to the populace
broadly?

In either case it's easy to argue that neither clergy or press are
universally today serving their historic traditional roles in society.
It's equally easy to argue they deserve the same Constitutional
protections long standing, as the roles under which press or clergy
exist, whether serving narrow or broad audiences in particular cases, are
adapted to the exponentially increased diversity of today's populace.

Terry

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